Copyright Introduction

Copyright is the area of law that protects creative works. It is different from patent law, which protects inventions, and from trade mark law, which protects names and logos. Sometimes, people mix up copyright and trade mark law, but one important point of different is that copyright does not protect insubstantial things. So a single word, or even a few words in the form of a title or heading, will usually be insufficient to attract copyright protection. If a person wants to protect a word or title, they will generally need to apply for a trade mark.

Copyright protects the way that something is expressed, not the idea behind it. So it will not protect the idea of a story about a boy wizard going to a magical school, but it will protect that way that JK Rowling has written her particular Harry Potter story.

Copyright arises automatically, upon creation, as soon as something is fixed in material form (written down, typed, recorded, etc.). There is no need to register for copyright protection, and there is no need to use the © symbol next to the protected work. For most works, copyright protection lasts for the lifetime of the author, plus an additional 70 years.

The first owner of copyright is the person who created the work, unless the work was made by an employee within the course of their employment, in which case the employer is the copyright owner.

Copyright ownership can be transferred to someone else (this is called an assignment), but to be a valid transfer it must be in writing and signed by both parties. (This is one reason why it is important to always read contracts carefully before signing).

Where there is more than one creator, ownership will depend on whether the contributions are separable. If one person writes chapters 1 – 3, and another person writes chapters 4 – 6, then they will each own copyright in the chapters that they wrote. But if the contributions are not separable, the contributors will own copyright together as joint owners, and should make any decisions about the copyrighted work together.

There are: literary works, artistic works, musical works, and dramatic works; and sound recordings, films, TV and radio broadcasts, and published editions. (“Published edition” is a limited form of copyright, owned by a publisher, that protects the layout and formatting of printed pages, but not the words).

This is relevant because a single object may have several layers of copyright, possibly owned and controlled by different people. For example, a magazine or newspaper article will likely comprise of: the written article (literary work), photographs or illustrations (artistic works) and a particular layout (published edition). Or a song may consist of lyrics (literary work), musical composition (musical work) and be recorded in a sound recording.

In general, copyright law gives a copyright owner the ability to control: copies of the work (the ‘reproduction’ right), adaptations (e.g. language translations, or converting a book to a film), the right of first publication of a work, public performance or public display, and the right to make the work available online (the ‘communication’ right). These rights are exclusive to the copyright owner, which means that no-one else can do these things without the copyright owner’s permission or a legal excuse. These are known as the ‘economic rights’, because the copyright owner has the ability to assign ownership or give permissions to use the work in exchange for payment.

Licences can be limited by which rights can be exercised, the purpose for the permission, time and/or geography.

It is important to understand the difference between an exclusive and non-exclusive licence. An exclusive licence is granted to the licensee (the person receiving the permission) exclusively, even to the exclusion of the licensor (the person granting the rights / the copyright owner). This means that if a copyright owner grants an exclusive licence to another person to reproduce the work, only that person can make copies of the work. The copyright owner can no longer make copies of their own work during the term of the exclusive licence. Practically, an exclusive licence may therefore have the same effect as an assignment. This is another reason why it is important to always read contracts carefully.

A non-exclusive licence means that the same permissions can be granted to multiple different people at the same time, and the copyright owner can continue to exercise the rights granted.

An exclusive licence must be in writing to be valid. A non-exclusive does not need to be, but it is good practice to have agreements in writing for your records.

Also, be aware that it is not uncommon for a contract to include both exclusive and non-exclusive licences. For example, a publishing agreement may seek an exclusive licence for first publication and a non-exclusive licence for the reproduction right.

It is a copyright infringement to exercise one or more of the exclusive rights of the copyright owner without permission or without a legal excuse (see exceptions below). The most common type of infringement is reproduction, because nearly every action that a person wants to do with a copyrighted work will require making a copy. For literary, artistic, musical and dramatic works, it is not necessary that the copy be exact. The law just requires that the copy be “substantially similar”. This is assessed by looking both at the quantity of what was taken (how much?) and the quality of what was taken (how important to the original?). This is a case-by-case assessment.

Exceptions: Fair dealing and fair use are different.

There is no ‘fair use’ in Australia. ‘Fair use’ is the name of the legal defence in the United States, but it does not apply here. In Australia, we have ‘fair dealing’ defences. These require that the dealing: (1) be for a permitted purpose; and (2) be fair. The permitted purposes in Australia are: for research or study (but not for teaching others); for criticism or review; for parody or satire; for reporting the news; for use in legal proceedings; and to provide access to the material for a person with a disability. ‘Fairness’ is normally assessed by considering whether the person took only as much as they needed to fulfil their purpose. For example, a person can quote extracts from a book or play that they are reviewing without the need for permission from the copyright owner.

Moral rights are granted to individual creators.

In addition to exclusive economic rights, a creator of a work will also have moral rights. Moral rights can only be held by persons (not corporations) and they cannot be transferred – they always stay with the creator, even if the economic rights (or ‘copyright’ as a whole) is assigned to someone else.

There are three moral rights: (1) the right to be attributed as the creator of the work; (2) the right not to be falsely attributed; and (3) the right of integrity of authorship, which is the right not to have the work subject to derogatory treatment. “Derogatory treatment” is defined to mean the doing of something to the work that results in the material distortion of, the mutilation of, or a material alteration to the work that is prejudicial to the author’s honour or reputation. This sounds very broad, but in reality this right has not been enforced very often so we don’t really know it’s exact scope.

All moral rights are subject to a reasonableness requirement that will take into account the context of the use. For example, a reasonable attribution for use of an image on a billboard will likely be different to a reasonable attribution for use of a work in the citations of a book.

The main objective of copyright law is to protect and promote creativity in our economy. In Australia, copyright law is governed by the /Copyright Act 1968/ (Cth). It broadly protects works of literary, musical, dramatic and/or artistic creativity.

  • Literary works are textual works such as song lyrics, books, journal articles, and the code of computer programs/software. This category covers almost anything in the written form. It does not cover headings and titles, however, because these are not considered substantial enough to warrant legal protection.
  • Artistic works cover paintings, photographs, craft work, drawings and sculptures. There is no need for the work to have ‘artistic merit’ to be protected. It simply needs to take artistic form, regardless of perceived quality or skill.
  • Musical works cover only musical compositions and notations. It does not cover song lyrics (which are a literary work) or the sound recording of a song (which is protected separately). For this reason, a popular song can have many different ‘layers’ of copyright.
  • Dramatic works cover theatrical plays, choreography, and mime pieces, as well as scripts for films.

Copyright law also protects:

  • cinematographic films which includes visual images and sounds in a film;
  • broadcasts by television and radio broadcasters; and
  • sound recordings recorded in a studio or otherwise.

It's important to remember that ‘ideas’ are not protected by copyright. Unless an idea is given some form of literary, dramatic, artistic or musical expression, it cannot be protected under the copyright law.

There is no system to register copyright in Australia. Copyrightable work does not require registration for protection under the law. Copyright protection is free and automatic.

Example: a website

Dasha, Sui-Ching and Peter are working together on a website for their employer. They contribute text, photographs and videos to the website. In this example, the text will be protected as a literary work, the photographs will be protected as artistic works, and the videos will be protected as cinematograph films.

Example: video production

Kirra and Stephanie make a video to upload to YouTube. They write out a scene for the video and act in it themselves. As part of the scene, they perform an original song. Kirra writes and plays the song on her guitar, while Stephanie sings.

In this example, there are a number of different types of copyright works. The script or scene directions for the video will be protected as a dramatic work. The music for the song (i.e. the musical notations) will be protected as a musical work, and the lyrics sung by Stephanie will be protected as a literary work. The overall video will be protected as a film.

Australian copyright law was originally derived from British law. It was not until the current legislation was passed, the Copyright Act 1968 (Cth) that Australia started to find its own identify with respect to copyright.

In the UK, prior to formal copyright legislation being passed, copying restrictions were authorised by the Licensing of the Press Act 1662. The Stationers’ Company enforced the restrictions imposed by the Act. They were a guild of printers given the exclusive power to print and distribute literary works. During this time, there were concerns regarding censorship with respect to the content that was printed and distributed by the guild of printers. The guild had full control over what content was printed and made available to the public. The public protested these restrictions and eventually Parliament refused to renew the Licensing Act, which ended the Stationers' monopoly and press restrictions.

Over the next 10 years the Stationers repeatedly advocated bills to re-authorise the old licensing system, but Parliament declined to enact them. Faced with this failure, the Stationers decided to emphasise the benefits of licensing to authors rather than publishers, and the Stationers succeeded in getting Parliament to consider a new bill. This new bill became the Statute of Anne 1709.

Statute of Anne 1709 was passed in 1710. This was the first statute to regulate copyright through the government and courts, rather than through private parties. One of the foundations of this statute was the prescribed copyright term of 14 years, with a provision for renewal for a similar term, during which only the author (and the printers they chose to license their works) could publish the author's creations. Following this, the copyright in the works would expire, with the material falling into the public domain. The Statute of Anne remained in force until the Copyright Act 1842 replaced it. The statute was an influence on copyright law in several other nations, including the United States, and even in the 21st century is considered to support the utilitarian justification for copyright law.

In 1828, the UK enacted the Australian Court Act 1828 (UK) which in effect caused all the Acts (that were in force at the time) in the UK to be enforced within Australia. The UK copyright law was among these laws.

Throughout the early 1900’s Australia had two copyright acts, the Copyright Act 1905 (Cth), which was the first copyright statute and the Copyright Act 1912 (Cth), this was the second copyright statute which repealed all other related legislation and adopted the Copyright Act 1911 (UK).

In 1959 the Spicer Report was released which proposed significant changes to Australia’s copyright law. The purpose of these changes was to enable the ratification of the Brussels Act of the Berne Convention. The Spicer Report led to the enactment of the Copyright Act 1968 (Cth), which remains in force today. This Act has been updated a number of times to account for new purposes, development in international laws and trade agreements.

There have been continuous changes in the legislation as a result of changes to technology.

Below is a brief timeline of the developments of copyright law in Australia from the first types of copyright in the UK through to the nuanced aspects of copyright in today's society.

Year Development in the Law Outcome
1476 Caxton Press The printing press was established in England.
1557 Stationers Company A guild was given a monopoly over printing and distributing books. This was a royal decree.
1643 The Licensing Order The Ordinance for the Regulating of Printing also known as the Licensing Order of 1643 instituted pre-publication censorship upon Parliamentary England.
1709 The Statute of Anne The Statute of Anne was the first statute to regulate copyright (by the government and courts), as opposed to private parties.
1828 Australian Court Act 1828 (UK) The UK statues were received into Australian colonies.
1883 Ownership in copyright As a result of changes to copyright law to include photographs the question of who was the owner of the copyright in the photograph and under what circumstances became an issue for the court to decide. 1)
1886 The Berne Convention The Berne Convention for the Protection of Literary and Artistic Works is agreed, following a campaign by French writer Victor Hugo. The aim is to give creators the right to control and receive payment for their creative works on an international level.
1901 The Australian Constitution Australia became a nation.
1905 Copyright Act 1905 (Cth) The first Commonwealth copyright statute.
1912 Copyright Act 1912 (Cth) The second Commonwealth copyright statute which adopted the Copyright Act 1911 (UK).
1937 Limitations to rights over intangible property The High Court of Australia considered the case of Victoria Park Racing & Recreation Grounds Co Ltd v Taylor 2) The case considered property rights. One aspect of the case considered whether copyright law had been breached with respect to facts. It was held that, “[t]he law of copyright does not operate to give any person an exclusive right to state or to describe particular facts. A person cannot by first announcing that a man fell off a bus or that a particular horse won a race prevent other people from stating those facts”.3)
1956 Copyright Act 1956 (UK) This Act did not apply to Australia.
1968 Copyright Act 1968 (Cth) The British Copyright Act 1911 continued to apply in Australia until the Copyright Act 1968 (Cth) came into force on 1 May 1969.
1994 Trade Related Aspects of Intellectual Property Rights (TRIPS) The TRIPS agreement entered into force which prescribed minimum standards for intellectual property, including copyright law.
2004 United States Free Trade Agreement (AUSFTA) Under the IP terms of this Agreement, Australia agreed to extend its copyright term from the life of the author plus 50 years to the life of the author plus 70 years.
2017 The Copyright (Disabilities and Other Measures) Act 2017 This Act was passed on 15 June 2017. One of the primary aims of the Act was to align Australia'a copyright law with the Marrakech Treaty.

There are six basic issues that must be considered in approaching copyright and related rights.

  1. Subsistence - This asks whether the the subject matter is protected by copyright?
  2. Ownership - Who owns the copyright?
  3. Infringement - Have any of the exclusive rights of the copyright owner been infringed?
  4. Defences - Do any defences apply to the alleged infringement?
  5. Remedies - What remedies are available?
  6. Related Rights - This asks whether there are any related rights associated with the copyright. For example moral rights, anti-circumvention and designs.

Each of these issues will be discussed in detail in the following chapters.


1)
Nottage v Jackson (1883) 11 QBD 627
2)
(1937) 58 CLR 479
3)
Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, [479]
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